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Volume 46, Issue 7 — July 2016


From Fire Comes Life: Why Courts Assessing Forest Fire Damages Should Recognize Ecological Benefits

by Amanda Hemmerich

Recent court decisions have awarded the federal government substantial recovery for damages from forest fires caused by a private party’s negligent conduct. In traditional forest fire cases, plaintiffs typically recovered response and suppression costs, in addition to compensation for the value of damaged timber or restoration costs. By framing forest fire impacts as “natural resource damages” and “intangible environmental damages,” the federal government has recovered increasingly large amounts for alleged harm to the environment and the value of lost ecosystem services. But a significant point of contention is whether there is injury to the natural environment or loss of ecological services following an unintentional forest fire that mimics a naturally occurring fire regime. Fire is an integral part of ecological landscapes and should be distinguished from traditional natural resource damages because of its beneficial effects. Forest fire damages should be evaluated under a framework that factors both beneficial and adverse impacts into recovery.

It Only Hurts When I Use It: The Payne Test and Pennsylvania’s Environmental Rights Amendment

by Kenneth T. Kristl

Article I, §27 of the Pennsylvania Constitution creates public rights in natural resources, and tasks the Commonwealth government with conserving and maintaining them for the benefit of all. The section’s expansive language was restricted by the 1973 Payne decision, which created a three-part test focusing on statutory compliance, efforts to reduce environmental effects, and a balancing of harms and benefits; under that test, most §27 claims have failed. In 2013, a plurality of the Pennsylvania Supreme Court in Robinson Township v. Commonwealth of Pennsylvania questioned Payne’s continued viability. This Article analyzes and develops the judicial and scholarly criticisms of the Payne test, and concludes that it cannot be salvaged. The author develops a new test based on the principles articulated by the Robinson Township plurality, arguing that it would allow Commonwealth agents and judges to ensure that §27 plays a vital role in protecting the environment.

Putting a Carbon Charge on Federal Coal: Legal and Economic Issues

by Alan Krupnick, Joel Darmstadter, Nathan Richardson, and Katrina McLaughlin

U.S. policy to limit greenhouse gas emissions is driven, in part, by the U.S. Environmental Protection Agency’s proposed Clean Power Plan, which seeks a drop in carbon dioxide (CO2) emissions from fossil-fueled power plants—a “downstream” approach to regulation. An alternative, or possibly complementary, approach is to consider the legal and economic feasibility of imposing an “upstream” CO2 charge on coal production at its extraction site, and specifically on leased coal from federal lands managed by the Bureau of Land Management (BLM). This Article argues that BLM has the statutory and regulatory authority to impose such a charge, and that it would be best to add it to the royalty rate; but that a large fee that dramatically reduced revenues could invite judicial concern. The economic case is weaker than the legal case because coal production on nonfederal lands (60% of total production) would not be subject to the charge and so could ramp up in response to the new policy. Best would be a comprehensive set of charges on royalties for all fossil fuels, irrespective of ownership.


The Volkswagen Air Pollution Emissions Litigation

by Arnold W. Reitze Jr.

On September 18, 2015, EPA announced that 482,000 Volkswagen diesel engine vehicles sold in the United States were programmed to pass emissions tests, but when operated under normal driving conditions emit air pollutants well above the legal limit. Volkswagen initially estimated the financial impact of these transgressions may cost the company over $9.24 billion, but by April 2016, the estimate had increased to $18.2 billion to cover the global emissions cheating scandal. This Comment looks at the litigation and at the potential for criminal prosecution.

Judge Garland’s Environmental Decisions

by Barry Kellman

Judge Merrick Garland’s nomination to the U.S. Supreme Court raises a question for environmental lawyers: What perspectives and predilections with regard to environmental litigation would he bring to the Court? This Comment reflects on Judge Garland’s environmental law opinions in the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit: his opinions for the court, his dissents, and his concurrences. The author focuses on eight cases that inform consideration of how deferential a Justice Garland might be to EPA as well as other federal agencies, and whether he is more or less sympathetic to the claims of environmental advocates than industry interests.


Grandfathering Coal: Power Plant Regulation Under the Clean Air Act

by Richard Revesz, William M. Bumpers, Jack Lienke, David Doniger, and William Rosenberg

In their book Struggling for Air: Power Plants and the “War on Coal,” Richard Revesz and Jack Lienke detail the history of the Clean Air Act and the political compromises that led to exempting existing power plants from significant portions of the Act’s regulatory authority. They explain that the Act’s ambitious health-based goals fell short due to this “grandfathering,” which disincentivizes utilities from updating existing power plants or constructing new ones; and they examine attempts by the executive branch to address its impacts, including the Obama Administration’s Clean Power Plan. Coal proponents claim these efforts aim to significantly reduce coal’s share of the electricity market, leading some to talk about a “War on Coal.” But does the reality live up to the critics’ fears? On January 27, 2016, the Environmental Law Institute convened Revesz, Lienke, and other experts in the field to discuss the degree to which the Clean Power Plan reduces pollution, and the interaction between grandfathering and pollution reduction. In this Dialogue, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.